Untangling Academic Freedom, Law, and Politics in the Steven Salaita Case

I am delighted to be in the Faculty Lounge, and I will soon take up Al’s invitation to post some observations about legal history.  But first, some comments about a current controversy:

 Defenders of Prof. Steven Salaita – whose job offer was recently rescinded by the University of Illinois – often seem to believe that this is an all or nothing proposition.  His academic freedom has been violated, and he has legal remedies, and he is a basically a good guy with an important message.  That approach confuses three separate issues – academic freedom, contractual rights, and political decency – which I hope to untangle in this post.  Even granting that Salaita has been aggrieved by the withdrawal of his job offer, it does not follow that he has a winning case for breach of contract, and it is baffling that so many people have been willing to overlook his celebration of violence against Israelis and his indulgence of blatant anti-Semitism.

 The noted Constitutional Law scholar Michael Dorf argues here that Salaita’s litigation would succeed because he has “an almost-classic case of promissory estoppel,” based on the assumption that Salaita “was told by Illinois that trustee approval was essentially a rubber stamp.”  But Dorf cannot tell us who might have provided the alleged assurance or how it was given, although that is an essential element of promissory estoppel (not just anyone can deliver a binding promise on behalf of an institution).  An actual case requires proof, however, and the official letter to Salaita – from interim dean Brian Ross of the College of Arts and Sciences – expressly made the offer contingent on approval by the trustees.  Even if Salaita received some sort of assurance from some unnamed person, that would not carry sufficient “apparent authority” to override Dean Ross’s unequivocal reservation.  Thus, as contracts scholar Dave Hoffman further explains here, Salaita’s case is far shakier than Dorf allows.  

 That does not mean Salaita should have been dumped by Illinois – like most academics, I think that the rescission of his offer was wrong – but only that he probably has no remedy at this point (other than accepting a settlement, which seems likely).  On a Venn diagram, the circles of academic freedom and legal enforcement would be overlapping but not congruent. 

 More troubling than the merits of his case, though, is the widespread insistence on defending, ignoring, or explaining away the language of Salaita’s venomous tweets, some of which were shockingly violent and anti-Semitic.  That is only to be expected on highly partisan political blogs such as Mondoweiss and Electronic Intifada, but even serious scholars have downplayed Salaita’s malicious comments.  An open letter on behalf of constitutional law teachers, for example, characterized Salaits’s tweets as merely “criticizing Israel’s military operations in Gaza,” which does not begin to tell the whole story.  

 One of Salaita’s worst tweets asserted that Zionists have made anti-Semitism “honorable.”  Without mentioning that appalling claim, Michael Dorf absolves Salaita of ill-intent because he once tweeted that “Zionists are partly responsible when people say antisemitc shit.”  According to Dorf, “someone making overtly antisemitic remarks would not refer to such views as ‘antisemitic shit.’”  That is reading a lot into a single profanity.  According to the Urban Dictionary, “it’s the shit” is a statement of high praise in contemporary youth slang.  Even in my generation, “giving shit” to somebody often meant delivering a sincere rebuke. 

 These days, everyone disclaims personal prejudice (see, e.g., Sterling, Donald), but that is no reason to accept their protestations.  A smart guy like Salaita surely knew that he was evoking an ancient anti-Jewish meme, and and stirring up some despicable anti-Jewish shit, when he tweeted that Benjamin Netanyahu might appear “wearing a necklace made of the teeth of Palestinian children.”  I do not understand the impulse to soft-pedal Salaita’s racist invective, but it requires true intellectual gymnastics to turn his comments into nothing more than an expression of his “opinion on the Middle East.”

 Worst of all has been the statement of the Illinois AAUP academic freedom committee.  After defending Salaita’s rights,  Illinois AAUP committee concluded its statement with a virtual endorsement of his political views – gratuitously adding that Salaita had protested “actions of another country that much of the global community including the U.N. Secretary General and even the U.S. State Department have found “disgraceful.’”  Even putting aside Salaita’s celebration of the kidnapping (and subsequent murder) of three Israeli teenagers, which occurred weeks before the current fighting in Gaza, why would the committee’s evident approval of Salaita’s tweets have anything to do with academic freedom?  This might be called the anti-Voltaire principle:  defending Salaita’s right to speak, while vigorously agreeing with him.

 What possible difference does it make if Salaita happens to agree, about a single incident, with the U.S. State Department?  Would he be less entitled to academic freedom if the State Department had not said anything about disgracefulness?  The Illinois AAUP committee, alas, has really exposed itself as deeply politicized, and has damaged the organization’s credibility in the process.

 Academic freedom is a valuable principle in its own right.  It is not reserved for scholars with strong legal cases whose statements can somehow be justified, and it is certainly not contingent on political approval by AAUP committees or agreement with the State Department.  Academic freedom is ultimately compromised when we begin confusing it with law and politics.  Those are separate realms, and they should be kept separate.

Comments

[Brian]

None of Salaita's tweets are anti-Semitic, including the one you repeatedly cite without regard to its context (even without the context, its meaning is fairly obvious, or was to me in any case). There is a thorough treatment of that tweet and its context here: http://mondoweiss.net/2014/08/reading-salaita-illinois-1.html#tweet1. It is you who are being highly and politically partisan, not those criticizing Illinois.

[Brian]

Prof. Lubet, Salaita's tweet, which you continue to cite without context, is not anti-Semitic (even without context, I thought it obviously not anti-Semitic); the relevant context is discussed here: http://mondoweiss.net/2014/08/reading-salaita-illinois-1.html#tweet1

Whether Salaita has an important message or is a good guy is wholly irrelevant in my view. What is relevant is that he received and accepted an offer with tenure, and reasonably relied on that offer when resigning his previous position. The offer included what had previously been a pro forma condition--approval by the Board of Trustees. It did not include a provision that the Chancellor could unilaterally revoke the appointment, which is what happened here.

By repeating misrepresentations of his tweets, you reveal yourself to be highly and politically partisan in this matter. I hope you will retract the misrepresentation.

[John K. Wilson]

Clearly, the great injustice here (as Lubet briefly notes) is the violation of academic freedom by firing Salaita because of his tweets, yet Lubet focuses overwhelmingly on the far less significant issue of whether those defending Salaita’s academic freedom have been sufficiently critical of his views.

As a member of the Illinois AAUP Committee A, I happen to mildly disagree, personally, with our statement’s critique and defense of Salaita’s views. I consider it irrelevant if Salaita’s words were “strident and vulgar” or if they expressed a viewpoint supported by the UN and the State Department. However, I think these statements merely reflect the fact that Salaita’s words were controversial but his political perspective was not far outside the political mainstream, which includes numerous people who now have good reason to fear punishment for criticizing the Israeli government at the University of Illinois. And the fact that the Illinois AAUP Committee A both defended and criticized Salaita’s views does not indicate that the committee is “deeply politicized,” but that we were attempting to be evenhanded toward acknowledging Salaita’s critics and defenders.

But Lubet’s attacks on Salaita also deserve analysis. It is simply inaccurate to say that Salaita is “shockingly violent” because he dreamed that West Bank settlers would “disappear” or because he retweeted a “shiv” comment wishing that Jeffrey Goldberg had been killed by one of the Palestinian prisoners he abused as an Israeli guard. “Shockingly violent” might be an appropriate way to describe an Israeli or Hamas attack that kills an innocent person, but it is not accurate for these words. Salaita might be guilty of wishing for retrospective violence in one case, but that is widely accepted as legitimate by all non-pacifists (should anyone who wished for Osama bin Laden’s death be banned from academia?), and fundamentally different from making a death threat or incitement to violence.

Lubet accuses Salaita of “evoking an ancient anti-Jewish meme” by tweeting about Netanyahu wearing a necklace of teeth. Unlike the traditional “blood libel” myth, I cannot find anything online linking the wearing of teeth with any anti-Semitic myths. The mere fact that a political leader is Jewish does not make all lurid accusations of savage conduct into anti-Semitic images. If someone made the same comment about Barack Obama’s use of drones, would it automatically be racist because he is black?

Lubet calls one of Salaita’s “worst” tweets that Zionists made anti-Semitism honorable, but here Lubet is omitting the rather important quote marks Salaita put around “anti-Semitism”—that is, Salaita was saying that Zionists have made it honorable to be falsely accused of “anti-Semitism” by misusing the word. While one can certainly criticize this viewpoint, it is not the same as calling anti-Semitism honorable, especially considering that Salaita had also tweeted, “My stand is fundamentally one of acknowledging and countering the horror of anti-Semitism.”

Lubet may not understand the “impulse to soft-pedal Salaita’s racist invective,” but I do not understand the impulse to find Salaita guilty of racism purely based upon such weak evidence. This is particularly true because a majority of the public regards being a racist as sufficient grounds for firing by a college. As Lubet admirably notes, Salaita’s academic freedom deserves to be defended even if he is a racist. However, I believe we must set a higher standard for proof of racism than these shaky interpretations, and we ought to focus instead on the academic freedom issue most of all.

[MacK]

I don't see any of Salaita's posts as anti-Semitic, though they may have been hyperbolic and have shown somewhat poor judgment in a debate where many participants are hyper-sensitive to the possibility that a person is an anti-Semite and where the accusation of antisemitism is dealt out around, to use an old cliché "like snuff at a wake."

I think what Salaita was pointing to was that the over-use of the accusation of anti-semitism (and its counterpart "self hating Jew") has the effect of placing a large number of critics of Israel's policies who abhor racism in the camp of the skinheads, neo-NAZIs, etc. It is in effect making anti-semitism respectable. Curiously the term anti-Semitism was an effort to make Jew-hating intellectually respectable by clothing it in the sort of racial bullshit that was popular in the 1870s to 1930s (along with phrenology) - a bit like Charles Murray "The Bell Curve."

So while I may find Salaita's language "over the top," I don't see it as anti-semetic. Nor do I see how over the top language is a basis for denying a professor tenure - cripes - there are so many professors who would lose tenure on that basis. Moreover, I cannot see how anyone can reconcile the blocking of Salaita's appointment (and many other in a more sub rosa manner) by Israel's supporters in academic governance with opposition to the BDS movement, particularly the academic boycott aspects. After all couldn't those who oppose Salaita and those who oppose Israeli policies, by blocking academic appointments, not be described as advocating their own academic boycott? As the saying goes "what is sauce for the goose is sauce for the gander."

[Lecturer]

Professor Wilson and other commenters: In determining what's offensive to a minority, it's always good to consult with a member of that minority. I'm Jewish. I find the comment "Zionism--making antisemitism honorable since 1948" (notice antisemitism is not in quotes) highly offensive. Knowing that Salaita wrote more ecumenical tweets when he was in a calmer frame of mind does not redeem this statement just as enclosing antisemitism in quotes in the other tweet cited does not neutralize it. In fact, it's even more insulting because it suggests antisemitism is not real when there is overwhelming proof to the contrary--for example, a branch of Sainsbury in the UK removed its stock of kosher food to pacify protestors the other day. I believe that Salaita has the academic freedom to say these things and retain his job, but he is surely not being targeted because of his pro-Palestinian views or his activism.

I'm sure that there are many things that I, as a white person, would not realize are racist. My starting point would be to have a dialogue with those affected and not declare they don't know what they're talking about. That's compounding insensitivity with arrogance.

[Kevin Jon Heller]

It's important to note that Lubet simply ignores the most powerful evidence that the Board's approval was merely pro forma -- namely, the fact that, by Chancellor Wise's own admission, Salaita was slated to begin teaching at Illinois before the Board was set to approve his appointment. That timeline is "how the assurance was given." What was Illinois going to do, cancel all of Salaita's classes and take his name off his office door if the Board rejected the appointment?

[Thinklikea1l.wordpress.com]

The notion that he has a solid promissory estoppel claim based on the assurance that board approval was a "rubber stamp" is pretty baffling to me.

I mean, presumably Salaita is the sort of sophisticated guy who would understand that the salient characteristic of such an assurance is its non-legally binding nature.

Though I'm not an expert on the academic job market, it's hard to see how quitting his then-current job would be the sort of "reasonable reliance" required to maintain a PE claim.

If anything, it seems more like the acceptance of an apparently minimal but nevertheless known risk in pursuit of some desired benefit. This isn't the foundation of promissory estoppel.

[Frank]

Let me raise a hypothetical: Suppose one substitute's Barack Obama for Benjamin Netanyahu in the tweet that Benjamin Netanyahu might appear “wearing a necklace made of the teeth of Palestinian children.” Would anyone claim it was not racist and overstepped permissible bounds of academic freedom? If not, explain the difference.

[Kevin Jon Heller]

Like Lecturer, I'm also Jewish. And I am not offended in the least by the "1948" quote, because it's clear from the scare quotes and from Salaita's many other tweets criticising actual anti-Semitism (conveniently ignored by Lubet and others who wish to brand Salaita anti-Semitic) that he is actually criticising the (false) equation of criticism of Israel and anti-Semitism.

[MacK]

Can you conceive of Obama, Bush or any mainstream US politician doing this sort of stuff

http://www.jewishjournal.com/opinion/article/bibi_netanyahu_ranks_high_as_racist_demagogue_20070119

Or awarding service medals to members of the Stern Gang, Irgun and Lehi - whose main claim to fame was bombing marketplaces full of civilians, civilian massacres (and kidnapping and eviscerating british WW II veterans so they could put booby traps in the body cavity) - or for that matter putting up a memorial plaque to celebrate the worst single terrorist bombing prior to Oklahoma city.

[John K. Wilson]

"Lecturer" cites a quote by Salaita claiming that it doesn't have quote marks. That quote is not accurate. Here is the actual tweet: "Zionists: transforming ‘anti-Semitism’ from something horrible into something honorable since 1948.″ Now, whether you think he's still an anti-Semite, quote marks do actually matter in interpretation. And Salaita's other tweets and writings acknowledge the existence of anti-Semitism. Declaring that some accusations of anti-Semitism are untrue is not, in itself, an anti-Semitic statement.

[Ted Herrlich]

What I do not understand is why is this an issue of academic freedom? Professor Salaita was not in a position teaching Middle Eastern Politics nor was he being hired into a position to teach such. Academic Freedom is not a license for an academic to say anything they want on any subject they wish! Academic freedom is to insure institutions cannot take negative action against professors for teaching controversial subjects within the purview of their subject areas. Suppose a Middle Eastern Political professor came out and said something negative about Biological Evolutionary theory, would that be a matter of academic freedom? I don't think so.

Now, what may have been violated is Salaita's right of free speech. I say 'may have' because as everyone should know that free speech is not exactly free. There are responsibilities and potential impacts. Anyone remember the Dixie Chicks and the impacts of their career after their exercise of free speech?

I do believe the Professor has the right to consider legal action against the University. By the same token, the University does have the right to hire who they wish. I think this is an employment rights issue more than anything. I mean the Professor did quit one job to take another with a certain expectation of employment. Academic Freedom should not be an issue in this case. He exercised his right to free speech and the University exercised its right to hire and fire employees. I seriously believe that if I brought negative publicity to my employer, I would very possibly be looking for a new job! That's reality.